The People, Appellant,v.Roman Baret, Respondent.BriefN.Y.May 1, 2014 Argued by CLARA H. SALZBERG (20 minutes) ____________________________________________________________________________ Court of Appeals STATE OF NEW YORK ╶───╴ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ROMAN BARET, Defendant-Respondent __________________________________________________________________ APPELLANT’S REPLY BRIEF _____________________________________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Appellant 198 East 161st Street Bronx, New York 10451 (718) 838-7101; Fax (718) 590-6523 JOSEPH N. FERDENZI CLARA H. SALZBERG Assistant District Attorney Of Counsel Date Completed: December 6, 2013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii STATEMENT……………………………………………………………………...1 THE FACTS………………………………………………………………………..1 ARGUMENT POINT ONE…………………………………………………………..2 DEFENDANT’S ARGUMENT TO THIS COURT THAT PADILLA v. KENTUCKY, 130 S.Ct. 1473 (2010), SHOULD BE APPLIED RETROACTIVELY AS A MATTER OF STATE LAW IS UNPRESERVED. POINT TWO………………………………………………………….4 THE UNITED STATES SUPREME COURT’S RULING IN PADILLA SHOULD NOT BE APPLIED RETROACTIVELY TO CONVICTIONS THAT WERE FINAL BEFORE IT WAS DECIDED. CONCLUSION…………………………………………………………………...10 ii TABLE OF AUTHORITIES FEDERAL CASES Chaidez v. United States, 133 S.Ct. 1103 (2013)………………………………..1, 6 Danforth v. Minnesota, 552 U.S. 264 (2008)……………………………………2, 5 Desist v. United States, 394 U.S. 244 (1969)………………………………………5 Hill v. Lockhart, 474 U.S. 52 (1985)……………………………………………….6 Jones v. Barnes, 463 U.S. 745 (1983)……………………………………………...3 Padilla v. Kentucky, 130 S.Ct. 1473 (2010)……………………………………..1, 8 Strickland v. Washington, 466 U.S. 668 (1984)……………………………………7 Teague v. Lane, 489 U.S. 288 (1989)………………………………………………1 NEW YORK STATE CASES People v. Alejandro, 70 N.Y.2d 133 (1987)………………………………………..2 People v. Alvarez, 2013 N.Y. Slip Op. 07743, 2013 WL 6084230 (2nd Dept. November 20, 2013)…………………………………………………..9 People v. Andrews, 108 A.D.3d 727 (2nd Dept. 2013)…………………………….9 People v. Baldi, 54 N.Y.2d 137 (1981)…………………………………………….7 People v. Baret, 11 N.Y.3d 31 (2008)……………………………………………...8 People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404 (2006)…………………….4 People v. Becoats, 17 N.Y.3d 643 (2011)………………………………………….2 People v. Cuadrado, 9 N.Y.3d 362 (2007)…………………………………………8 iii People v. Eastman, 85 N.Y.2d 265 (1995)…………………………………………4 People v. Ford, 86 N.Y.2d 397 (1995)……………………………………………..6 People v. Kabre, 29 Misc.3d 307 (N.Y. Crim. Ct. 2010)…………………………..2 People v. Lopez, 71 N.Y.2d 662 (1988)…………………………………………1, 4 People v. Marshall, 39 Misc.3d 1214(A) (Bronx Co. Sup. Ct. 2013) (unreported)………….………………………………………………………9 People v. Martin, 50 N.Y.2d 1024 (1980)………………………………………….2 People v. McDonald, 1 N.Y.3d 109 (2003)……………………………………...5, 7 People v. Michael, 48 N.Y.2d 1 (1979)…………………………………………….4 People v. Patterson, 39 N.Y.2d 288 (1976)………………………………………..2 People v. Pepper, 53 N.Y.2d 213 (1981)………………………………………..5, 7 People v. Santiago, 22 N.Y.3d 900 (2013)…………………………………………2 People v. Soodoo, 109 A.D.3d 1014 (2nd Dept. 2013)…………………………….9 People v. Stephens, 84 N.Y.2d 990 (1994)…………………………………………2 People v. Tony C., 110 A.D.3d 1093 (2nd Dept. 2013)……………………………9 People v. Vatic, 39 Misc.3d 1236(A) (Bronx Co. Sup. Ct. 2013) (unreported)………………………………………………………………….9 People v. Verdejo, 109 A.D.3d 138 (1st Dept. 2013)………………………………8 Policano v. Herbert, 7 N.Y.3d 588 (2006)…………………………………………6 iv OTHER STATE CASES Commonwealth v. Sylvain, 466 Mass. 422 (2013)…………………………………6 STATUTES CPL § 440.10……………………………………………………………………….8 CPL § 470.30……………………………………………………………………….2 N.Y. Const. Art. 6, § 3……………………………………………………………...2 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ROMAN BARET, Defendant-Respondent. ------------------------------------------------------------------X APPELLANT’S REPLY BRIEF STATEMENT Appellant submits this brief in reply to the brief filed by counsel for defendant-respondent Roman Baret. THE FACTS The facts can be found on pp. 3-8 of appellant's original brief filed with this Court. 1 ARGUMENT POINT ONE DEFENDANT’S ARGUMENT TO THIS COURT THAT PADILLA v. KENTUCKY, 130 S.Ct. 1473 (2010), SHOULD BE APPLIED RETROACTIVELY AS A MATTER OF STATE LAW IS UNPRESERVED. In his motion to vacate the judgment of conviction, defendant argued that, under the standard articulated in Teague v. Lane, 489 U.S. 288 (1989), Padilla should be applied retroactively (A26-114). No argument was made that the Padilla rule should be applied retroactively as a matter of state law. Following Chaidez v. United States, 133 S.Ct. 1103 (2013), which found that Padilla should not be retroactively applied, defendant now asks that this Court find Padilla retroactive as a matter of state law. Defendant’s current state law argument is unpreserved and, therefore, may not be reviewed by this Court. This Court is generally only empowered to review a question of law where the parties have raised the issue in the nisi prius court. See People v. Lopez, 71 N.Y.2d 662, 665 (1988). Therefore, because defendant did not argue before the Supreme Court, Bronx County, that Padilla should be given retroactive effect under state law, that claim is unpreserved for appellate review and beyond the jurisdiction of this Court. This rule applies even when the question presented is one 2 of constitutional dimensions. See People v. Stephens, 84 N.Y.2d 990, 992 (1994); see also People v. Martin, 50 N.Y.2d 1024, 1031 (1980). The exceptions to this rule of preservation are limited to jurisdictional issues (see People v. Alejandro, 70 N.Y.2d 133, 135 [1987]), issues in capital cases (see N.Y. Const. Art. 6, § 3[a]; see also CPL § 470.30[2]), unauthorized or illegal sentences (see People v. Santiago, 22 N.Y.3d 900 [2013]), and any “error that would affect the organization of the court or the mode of proceedings pr[e]scribed by law” (People v. Becoats, 17 N.Y.3d 643, 650 [2011], quoting People v. Patterson, 39 N.Y.2d 288, 295 [1976]), none of which are applicable here. Defendant does not identify any state retroactivity arguments in his CPL § 440.10 motion, thereby implicitly conceding that he did not make any. Instead, he argues that the Supreme Court’s general citation to People v. Kabre, 29 Misc.3d 307 (N.Y. Crim. Ct. 2010), in its decision denying defendant’s motion somehow preserved the issue of state retroactivity (Defendant’s Brief, pp. 51-53). Specifically, defendant points to a footnote in Kabre where mention is made of the United States Supreme Court’s ruling in Danforth v. Minnesota, 552 U.S. 264 (2008).The motion court, however, did not cite to this footnote, and cited Kabre generally for its holding that “this Court will not apply Padilla retroactively to this claim” (A336). A passing mention to state retroactivity in the footnote of a cited 3 decision, without more, is simply insufficient to preserve the issue for this Court’s review. In addition, defendant makes the misleading claim that he preserved the state retroactivity argument by citing to the New York Constitution and CPL § 440.10 (Defendant’s Brief, p. 52). These citations, however, were made with regard to his ineffective assistance of counsel claim, not his argument that Padilla should be retroactively applied. It is altogether understandable that defense counsel urged the motion court to find Padilla retroactive solely as a matter of federal law. After all, Padilla was a federally created rule and, prior to its promulgation, New York had steadfastly rejected the idea that criminal defense attorneys were obligated to give immigration advice to their clients. A reasonably competent attorney would, therefore, eschew a state argument for fear of detracting from his more powerful federal argument. See Jones v. Barnes, 463 U.S. 745, 751-752 (1983).1 Now that Chaidez has put an end to this hope of success under a federal standard, defendant seeks to have the motion court’s decision reversed on the basis of an argument he never made and that the court below never considered. That hardly seems fair. 1 The principles underlying Barnes resolve defense counsel’s “confession” that he was ineffective (see Defendant’s Brief, p. 53, n. 26). 4 The preservation rule is not a mere technicality designed to shield unjust rulings from review; rather, at its core, it is a rule of fairness. In addition to encouraging judicial efficiency and providing the lower court a fair opportunity to address the claim, this rule also protects “the very real interest of the State in achieving finality in a criminal prosecution.” Lopez, 71 N.Y.2d at 665, quoting People v. Michael, 48 N.Y.2d 1, 6 (1979). The rule is also designed to ensure that this Court obtains the benefit of the analysis of both the trial court and the Appellate Division. See People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408 (2006). POINT TWO THE UNITED STATES SUPREME COURT’S RULING IN PADILLA SHOULD NOT BE APPLIED RETROACTIVELY TO CONVICTIONS THAT WERE FINAL BEFORE IT WAS DECIDED. Padilla should not be retroactively applied to convictions that were final before it was decided. In People v. Eastman, 85 N.Y.2d 265, 276 (1995), this Court held that where a federal constitutional protection is at stake, it is “constitutionally commanded” to apply the federal retroactivity standard explicated in Teague. Unlike in Eastman, the Supreme Court has already settled the question of Padilla’s retroactivity in Chaidez. While this Court may apply the Padilla rule retroactively as a matter of state law, see Danforth, 552 U.S. at 275, it should not do so. 5 The New York rule of retroactivity is set out by People v. Pepper, 53 N.Y.2d 213, 222 (1981). Pepper invokes three factors when determining whether a change in the law should have retroactive application: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Id. at 220, quoting Desist v. United States, 394 U.S. 244, 249 (1969). Ultimately, a new rule should only be retroactive on postconviction review when it involves “manifest injustice” going “to the heart of a reliable determination of guilt.” Id. at 221. Such a concern weighs less heavily where, as here, the determination of guilt is the result of defendant’s guilty plea. The Pepper factors militate against retroactive application of the Padilla rule. First, the purpose of Padilla is to ensure that a defendant who could face deportation as a result of a guilty plea is forewarned, a consideration that does not have any bearing on the “reliable determination of guilt or innocence” of the accused. Id. Second, as recently as 2003, this Court held that “[t]he mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel.” People v. McDonald, 1 N.Y.3d 109, 114 (2003), citing 6 People v. Ford, 86 N.Y.2d 397, 404 (1995).2 Indeed, fourteen months before defendant’s December 1996 guilty plea, this Court stated in Ford that “the failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel.” Ford, 86 N.Y.2d at 405. Over the years, New York courts and attorneys relied on Ford and McDonald when assessing countless guilty pleas; it would be patently unfair to invalidate these pleas by retroactively applying the Padilla rule.3 See generally Policano v. Herbert, 7 N.Y.3d 588, 604 (2006) (Observing that “retroactive application [of a new standard for depraved indifference murder] would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted . . . under the law as it existed at the time of their convictions.”). Here, retroactive application of the Padilla rule would result in a flood of vacated convictions even greater than the one anticipated in Policano. Another great unfairness in a retroactive application would be, of course, to the defense attorneys who comported themselves in accord with Ford and 2 In contrast, Massachusetts’ Supreme Judicial Court, which recently decided to apply Padilla retroactively in Commonwealth v. Sylvain, 466 Mass. 422 (2013), had not previously decided the issue. 3 The Supreme Court adopted similar reasoning in Chaidez, observing that after it “explicitly left open” the question of whether Strickland applies to collateral consequences in Hill v. Lockhart, 474 U.S. 52, 60 (1985), the vast majority of federal and state courts (including this Court) subsequently determined that failure to advise a defendant of the potential immigration consequences of a guilty plea did not constitute ineffective assistance of counsel. The Court held that Padilla was, therefore, a “new rule” for which retroactive application was unwarranted. Chaidez, 133 S.Ct. at 1108-1111. 7 McDonald. Having heeded the essential admonition that no advice was better than wrong advice, see McDonald, 1 N.Y.3d at 114, they would now find that they had been ineffective, synonymous to being called incompetent. Obviously, a defense attorney cannot be held to a standard of performance that did not exist at the time of his representation. See Strickland v. Washington, 466 U.S. 668, 688-689 (1984) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, . . . and to evaluate the conduct from counsel’s perspective at the time”); see also People v. Baldi, 54 N.Y.2d 137, 147 (1981) (“So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met”). Plea counsel should not be deemed ineffective for relying on the then-current legal standard. Third, as has already been suggested, “the effect on the administration of justice of a retroactive application of the new standards” would be extreme. Pepper, 53 N.Y.3d at 220. This Court observed in Pepper that applying a new rule retroactively to cases on postconviction review “impermissibly. . . means that every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary.” Id. at 222. In New York, retroactive 8 application of a rule to cases on collateral review is even more pernicious because there is no statute of limitations governing CPL § 440.10 motions. See CPL § 440.10(1) (motion may be made “[a]t any time after the entry of a judgment”). Therefore, the Supreme Court’s observation in Padilla that defendants will not seek to challenge their convictions due to the risk of a “less favorable outcome” should they be convicted at a new trial, Padilla, 130 S.Ct. at 1486, does not hold here. Indeed, the instant defendant is illustrative of the unfairness to the People if the rule were retroactive. This defendant pled guilty in 1996 for a crime committed in 1994. He absconded prior to sentencing and was sentenced in 2004.4 It is far more difficult to try a case that originally ended in a guilty plea than to re-try a case after a trial has already been conducted since, in the latter case, previously recorded and cross-examined testimony can be used to refresh a witness’s memory or to replace the testimony of an unavailable witness. The great difficulty that the People would encounter in reviving a case long after a plea has been taken has been recognized by this Court. See People v. Cuadrado, 9 N.Y.3d 362, 365 (2007). In sum, all three Pepper factors weigh against retroactive application of Padilla. Notably, following Chaidez, New York courts have unanimously found that Padilla does not have retroactive effect as a matter of state law. People v. 4 Defendant’s conviction was affirmed by this Court on direct appeal on June 25, 2008. See People v. Baret, 11 N.Y.3d 31 (2008). 9 Verdejo, 109 A.D.3d 138 (1st Dept. 2013); People v. Alvarez, 2013 N.Y. Slip Op. 07743, 2013 WL 6084230 (2nd Dept. November 20, 2013); People v. Tony C., 110 A.D.3d 1093 (2nd Dept. 2013); People v. Soodoo, 109 A.D.3d 1014 (2nd Dept. 2013); People v. Andrews, 108 A.D.3d 727 (2nd Dept. 2013); People v. Vatic, 39 Misc.3d 1236(A) (Bronx Co. Sup. Ct. 2013) (unreported); People v. Marshall, 39 Misc.3d 1214(A) (Bronx Co. Sup. Ct. 2013) (unreported). They were correct to hold that Padilla should not have retroactive effect as a matter of state law. The motion court correctly held that Padilla should not be retroactively applied to defendant’s guilty plea. Because the Appellate Division incorrectly held otherwise, its decision must be reversed. 10 CONCLUSION FOR THE FOREGOING REASONS, THE ORDER APPEALED FROM SHOULD BE REVERSED IN ALL RESPECTS. Respectfully submitted, ROBERT T. JOHNSON District Attorney, Bronx County Attorney for Appellant ______________________________ By: CLARA H. SALZBERG Assistant District Attorney JOSEPH N. FERDENZI CLARA H. SALZBERG Assistant District Attorneys Of Counsel December 6, 2013